2019 (4) TMI 1155 - AT - Income Tax

Reopening of assessment - deduction u/s. 43B disallowed - HELD THAT - As per tax audit report, it was stated that this claim is u/s. 43B and this is accepted factual position that no payment was made in the present year and therefore, deduction u/s. 43B is not allowable in the present year u/s. 43B. As per the relevant portion of tax audit report it is seen that it has been shown that property registration fees was paid out of opening balance of ₹ 96 Lakhs which has been paid during the present year and regarding date of remittance, it is said that Note no. 3 is relevant and note no. 3 says that paid / adjusted during the year and when this is admitted position of fact that payment was not made in the present year and there is no evidence to claim in the tax audit report, in our considered opinion, the reopening is valid because at the stage of reopening, only a prima facie case has to be made out by the AO that some income has escaped assessment and the AO has done so in the present case. In this view of the matter, we uphold the reopening. Ground no. 2 is rejected. Merit of the disallowance u/s 43B - HELD THAT - The claim of the assessee is this that in earlier year, certain provisions was made and the same was disallowed in the respective year u/s. 43B and in the present year, such provision is reversed by debit to provision account and credit to rent account. This is the claim of the assessee that such credit to rent account in the present year by way of reversal of the earlier provision having been already disallowed in the respective year, cannot be taxed in the present year. If the facts stated by assessee are correct then the claim of assessee is acceptable. But since this factual aspect has never been examined by AO or CIT (A), we feel it proper to restore the matter back to the file of AO for factual verification of this aspect of the matter. Ground no. 3 is allowed for statistical purposes.

Summary

Issues involved:
1. Validity of reassessment proceedings under section 147 of the Income-tax Act.
2. Disallowance of write back of provision for property registration charges.
3. Levy of interest under section 234B.

Issue 1: Validity of reassessment proceedings
The appellant challenged the order of the Commissioner of Income-tax (Appeals) upholding the reassessment proceedings under section 147 of the Income-tax Act for Assessment Year 2004-05. The appellant contended that the proceedings were invalid, unlawful, and lacked jurisdiction as the pre-conditions prescribed by law were not met. The appellant argued that the Assessing Officer (AO) failed to substantiate the "reason to believe" for initiating the reassessment and disregarded settled legal positions. However, the CIT (A) upheld the reopening, stating that there was tangible material indicating a failure to disclose all material facts necessary for assessment. The tribunal upheld the reopening, noting that a prima facie case was made out by the AO, as the claim for property registration charges was considered capital expenditure and not allowable under section 43B of the Act.

Issue 2: Disallowance of write back of provision for property registration charges
The appellant contested the disallowance of the deduction claimed for write back of provision for property registration charges amounting to INR 96,00,000 during the assessment year. The appellant argued that the provision was reversed in the present year, leading to double taxation since it had already been charged in earlier assessment years. The tribunal observed that the claim under section 43B was not supported by proof of payment in the present year. The tribunal directed the AO to verify whether the amount credited in the rent account in the present year on account of the provision reversal, which was disallowed in earlier years, should be taxed in the present year. The matter was remanded to the AO for factual verification, and if the appellant could establish the factual aspects, no disallowance would be warranted.

Issue 3: Levy of interest under section 234B
The appellant raised objections regarding the computation of interest under section 234B by the AO, alleging excess interest levied without considering foreign tax credit claimed. The CIT (A) did not adjudicate on these grounds, prompting the appellant's appeal. The tribunal did not delve into this issue, considering it consequential and not requiring adjudication. The appeal was partly allowed for statistical purposes, emphasizing the need for factual verification in the matter of disallowance of provision reversal for property registration charges.

In conclusion, the tribunal upheld the validity of reassessment proceedings, remanded the disallowance issue for factual verification, and did not adjudicate on the interest levy matter, partially allowing the appeal for statistical purposes.